JUDGMENT
S.P. Kurdukar, J.
1. This petition under Article 227 of the Constitution of India is directed against the order passed by the Minister of State for Revenue (Appellate Authority) on January, 25, 1977 allowing the appeal partly and setting aside the order passed by the Tahsildar, Gangapur and remitting the matter back to the Tahsildar, Gangapur, for disposal according to law.
2. Few admitted facts which gave rise to this petition may be narrated as under: The land in dispute bears survey No. 33 situate at village Godhegaon, Taluka Gangapur, District Aurangabad. The petitioner was the original Inamdar in respect of this land. The nature of the inam was Madad Mash. This provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 (hereinafter referred to as “the said Act”) were brought into force in the erstwhile State of Hyderabad on July 20, 1955. The land in dispute is situated in the erstwhile State of Hyderabad and, therefore, the provisions of the said act are applicable to the said land. According to the provisions of section 3 of the said Act, all such inams would vest in the Government on July 20, 1955 and, thereafter the provisions of the said Act would be made applicable to all such inam lands.
3. The respondent No. 1 claims to be the tenant of the disputed land. The Deputy Collector by his order dated September 7, 1961 granted the occupancy rights under section 6 of the said Act in favour of the petitioner. It appears that this order was passed ex parte and the respondent No. 1 was not party to the said proceedings. On June, 30, 1962, the respondent No. 1 made an application to the Deputy Collector contending inter alia, that he therefore, he is entitled for occupancy rights. On September 24, 1962, the application filed by the respondent No. 1 was dismissed for default. We are told that no proceedings were taken out by the respondent No. 1 against the order dated September 24, 1962 and thus the same became final. On October 2, 1966, the respondent No. 1 filed second application to the Tahsildar contending, inter alia, that he has been in possession of the disputed land as a tenant of the petitioner for 1957 and he continued to be in possession on July 1, 1960. The respondent No. 1 further stated that by reason of his possession over the disputed land on July 1, 1960 he is entitled to become occupant under the provisions of the said Act and occupancy rights be conferred on him. This application was opposed by the petitioner on several grounds and it is not necessary to state in details the challenges given by the petitioner to the said petition. Upon hearing both the parties, the Tahsildar, by his order dated January, 4, 1967, rejected the second application filed by the respondent No. 1 on merits. The Tahsildar in his judgment observed that since the occupancy rights were already conferred on the petitioner, he has no jurisdiction to entertain this second application. The Tahsildar accordingly dismissed the application. It is also admitted position that no appeal was carried by the respondent No. 1, the aggrieved party, to the Appellate Authority and, therefore, the order passed by the Tahsildar on January, 4, 1967 on merits became final.
4. On February, 16, 1967 the third application was filed by the respondent No. 1 to the Tahsildar alleging inter alia, that he was in actual possession of the disputed land from 1959-60 onwards and by virtue of his possession on July 1,1960, he is entitled for occupancy rights under section 6 of the said Act. This application was opposed by the petitioner on several grounds. The main contention raised by the petitioner is that the present application is barred by the principles analogous to res judicata and the Tahsildar has no jurisdiction to entertain this application. The petitioner also contended that the respondent No. 1 was never in possession of the disputed land on July 20, 1955 as also on July 1, 1960. As the respondent No. 1 was not in possession on both these dates he is not entitled for occupancy rights under any of the provisions of the Act. The petitioner, therefore, prayed that the application filed by the respondent No. 1 be rejected. He Tahsildar enquired this application and by his order dated September 30, 1969 at Ex. 8 rejected the application of the respondent No. 1. The Tahsildar came to the conclusion that in view of the order of the Tahsildar dated January 4, 1967 passed on the application of the respondent No. 1, the second application is barred by the principles of res judicata. Consistent with this finding, the learned Tahsildar by his order dated August 30, 1969 rejected the application of the respondent No. 1.
5. Aggrieved by this order the respondent No. 1 carried appeal to the State Government, under sub-section (2) of section 2-A of the said Act. This appeal was heard by Minister of State for Revenue and the appellant authority by its order dated January, 25, 1977 allowed the appeal partly, set aside the order passed by the Tahsildar and remanded the case to the Tahsildar, Gangapur, for passing suitable orders in accordance with law. The order of the Appellate Authority is annexed to this petition at Ex. C.
6. Aggrieved by this order at Ex. C passed by the Appellate Authority, the petitioner has filed this petition to this Court under Article 227 of the Constitution.
7. Shri R.M. Agrawal, the learned Advocate appearing on behalf of the petitioner firstly submitted that the Appellate Authority has totally over looked the fact that the two parties applications filed on behalf of respondent No. 1 for the same relief were dismissed. Shri Agrawal strenuously urged that in view of the order passed by the Tahsildar on January, 4, 1967 on the second application of the respondent No. 1 dismissing the said application on merits, the present application is barred by principles of res judicata. We find much substance in the contention of Shri Agrawal.
8. Shri A.V. Savant, the learned Advocate appearing on behalf of the respondent No. 1 did not challenge the fact that the Tahsildar on January, 4, 1967 decided the application of the respondent No. 1 on merits and the Tahsildar has rejected the said application of the respondent No. 1 seeking grant of occupancy rights in his favour under section 6 of the said Act. It is, therefore, clear to us that in view of the order of the Tahsildar, dated January, 4, 1967 rejecting the application of the respondent No. 1 on merits the present application filed by the respondent No. 1 on February 16, 1967 is barred by the principles analogous to res judicata. In our opinion, the Tahsildar by his order dated August 30, 1969 has rightly rejected the application filed by the respondent No. 1 on February, 16, 1967. The Appellate Authority in our judgment, has completely over looked this legal position and has strenuously seta side the order passed by the Tahsildar on August 30, 1969.
9. Shri Agrawal then drew attention to the provisions of sub-section (4) of section 2-A of the said Act and submitted that the order passed by the Tahsildar on January, 4, 1967 has become final and it is not open to the respondent No. 1 to take up fresh proceedings on the same cause of action for the same said reliefs in respect of the same subject matter. According to Shri Agrawal, the third petition filed by the respondent No. 1, therefore, cannot be considered on merits. We find much substance in the contention of Shri Agrawal. It is clear that the order dated January, 4, 1967 passed by the Tahsildar is on merits and is binding upon the parties so long as the same is neither varied nor set aside by the Appellate Authority. As stated earlier, admittedly the order dated January, 4, 1967 has neither been varied nor set aside by the Appellate Authority. In view of the provisions of sub-section (4) of section 2-A of the Act, we find that the respondent No. 1 cannot file fresh application to the Tahsildar to avoid the legal effect of the order dated January, 4, 1967. Shri Savant the learned Advocate appearing on behalf of respondent No. 1 then argued that pursuant to the order of the Appellate Authority dated January, 25, 1977 the Deputy Collector heard the matter on merits and passed an order in favour of the respondent No. 1. We may point out that neither certified copy nor an ordinary copy of the said order of the Deputy Collector dated April, 28, 1978 is produced before us by the learned Advocate Shri Savant. It is needless to observe that any order passed by the Deputy Collector consequent upon the order of them and passed by the Appellate Authority (Minister of State for Revenue) which we have held illegal becomes non-existent and without jurisdiction. The order of the Deputy Collector dated 25-4-1978 on remand, is thus illegal and hence will have to be quashed and set aside. It is patently clear from the order of the Appellate Authority that the said authority has not considered the various relevant provisions of the said Act. The Appellate Authority has not even considered the principles laid down by the Full Bench of this Court in Dattatrayan Sadashiv v. Ganpati Raghu, 67 Bom.L.R. 521. The learned Appellate Authority has also not considered the ratio of the judgment in Thakur Niranjansingh v. Bhagatraj, 68 Bom.L.R. 167. The Division Bench of this Court has held that no tenancy could be created in respect of Inam lands which vested in the Government on 20-7-1955 after enforcement of the said Act. The respondent No. 1 in the present case was not consistent in disclosing the exact date as to when his tenancy commenced. In the second application filed on 2-10-1966 respondent No. 1 has stated that he came in possession as a tenant in the year 1957 whereas in the third applications filed on 16-2-1967 he stated that he has been in actual possession since 1959-60. Accepting the best that could be said in favour of respondent No. 1 viz. that he came in possession as a tenant in the year 1957, in our opinion, in view of the judgment of this Court in Thakur Niranjansingh v. Bhagatraj (supra), the respondent No. 1 will have no right whatsoever in respect of the disputed land. His claim a tenant cannot be considered as he himself admits to have come in possession of the suit land in the year 1957. It is, therefore, clear that the respondent No. 1 has also no case on merits. We are told that the Deputy Collector after the order of remand passed by the Appellate Authority has held that the respondent No. 1 was in possession on 1-7-1960 and, therefore, he is entitled for occupancy rights. This finding in our opinion, is contrary to the provisions of the said Act. As stated earlier, since the order of Minister of State for Revenue dated January, 25, 1967 is held bad and illegal by us and since we have quashed and set aside that order, any further proceedings taken up by the authorities pursuant to the said order of remand would also meet the ame fate. Although the order of the Deputy Collector dated 28-4-1978 is not before us but, however, we have no hesitation in saying that the order said order is bad and illegal and, therefore, it is quashed and set aside while exercising our superintending jurisdiction.
10. On the application of the petitioners’ Advocate the name of the respondent No. 3 is deleted.
11. In the result, the order passed by the Appellate Authority i.e. Minister of State for Revenue on January, 25, 1977 at Ex. C is quashed and set aside. The order passed by the Deputy Collector on April, 28, 1978 pursuant to the order of remand passed by the Appellate Authority on January, 25, 1977 is also quashed and set aside. The order passed by the Tahsildar dated August 30, 1969 is restored to file. The rule is made absolute. The first respondent is directed to pay the costs of the petitioner. The second respondent to bear his own costs.